The Medico-Legal Society of Malaysia (MLSM) celebrated its 30th birthday at Nexus, Bangsar South, Kuala Lumpur, on 4 November. Over 200 lawyers and healthcare professionals attended the event that was packed with insightful and empowering sessions to address the current challenges of the medico-legal scene.

On 4 November, the Medico-Legal Society of Malaysia (MLSM) held a conference marking its 30th year in the running, at Nexus, Bangsar South, Kuala Lumpur. The one-day conference welcomed over 200 lawyers and healthcare professionals to an exciting and insightful programme—carefully planned to address the most current and challenging issues in the medico-legal scene.

Despite the programme being packed with only 11 sessions, there was barely enough time for the 13 local and international speakers to empower healthcare professionals and aspiring medical lawyers through the exploration of pivotal cases.

Landscaping the current medico-legal situation of Malaysia

Dr Jeyaindran highlighting the pressing fact that university hospitals refuse to be regulated as they claim “they are not part of the private healthcare facility and they are public healthcare facilities. But the [MOH] list does not include them.”

Among other key issues of concern the Ministry of Health (MOH) is facing, Dr Jeyaindran mentioned that the recurring problem is the lack of power to control any MCOs – despite them offering healthcare-related services. This is because they “do not fall under the definition of private healthcare facilities and services.”

Issues include delayed reimbursement to doctors, capping of consulting fees, unethical practices of fee-splitting, and intervention in medical care and management.

In a bid to tackle the problem, Dr Jeyaindran commented that Malaysia is mimicking Singapore in “going after the doctors who have signed contracts with them.” This allows the ministry to address matters in a timely matter, by narrowing down problematic MCOs.

Dr Jeyaindran was presented a token of appreciation by Professor Balwant, President of MLSM, after delivering the opening address.

Singaporean courts decide with patient-centric approach

Mr Edwin Tong, Senior Counsel and Partner at Messrs. Allen & Gledhill, Singapore, then took to the stage, sharing his expertise on the recent significant decisions of the Singaporean courts and how these decisions are changing the medio-legal landscape of Singapore.

Being part of the lead council in theHii Chii Kok v Ooi Peng Jin London Lucien and another case – a leading case that has now become a landmark decision in Singapore – Mr Tong brought attention to the clinical negligence focus on information, patient autonomy and patient choices. He added that many cases in Singapore dealt with professional misconduct, and this brought about the recognition of providing a more patient-centric approach as good quality healthcare.

“The questions, however, (from the cases that you’ll see) will be what is the right balance strike when we deal with these patients’ autonomy cases? Because there’s a very fine balance, within giving appropriate information, giving the right information, and contrast it with giving information that the patient wants,” elaborated Mr Tong, citing several other prominent cases in Singapore, as examples.

Defining “best interests” of patients – "Medical vs. Legal”

One of the most anticipated talks, was delivered by Dr David Kan, Partner, Solicitor Advocate, Howse Williams Bowers, Hong Kong. Previously a medical doctor, now a lawyer, Dr Kan described a few cases – including the case of Charlie Gard – that emphasised the law always rules in the best interest of the patient.

However, he questioned what “best interest” really meant. To answer that, he led the audience through the case of Re Wyatt, which portrayed both medical and legal perspectives. The case concluded that the judge will always decide what is in the patient’s best interest; and in making that decision, the welfare of the patient is paramount. Therefore, the question must be assumed from the point of view of the patient.

“The legal test is simple, but often recognises that getting in by law is easy – however, getting a conclusion is not,” highlighted Dr Kan.

Dr Kan emphasised that “medical experts provide medical opinion to assist the court; but, ultimately it is the court that make the decision in whether it is in the best interest of the patients.”

Elaborating further, he mentioned the medical perspective, that “talks about the prospects of success in the treatment; it talks about anticipating the outcome of the treatments,” – which is debatable.

In the case of Charlie Gard, the views of parents have to be taken into account as well. Dr Kan, however, cautions against that – as more often than not – parents often express their emotions, instead of expressing their point of view of their children.

He concluded, with a take home message that doctors must question whether it is in the best interest to treat the patient or not.

“It is about deciding whether a treatment will be in the best interest – the right approach of the patient. It would be wrong to look at the question as to deciding in the best interest to withdraw,” emphasised Dr Kan, “If the treatment is not in the best interest, it’s better not to treat – even though it means withdrawing the treatment where the child would abruptly die.”

Policy-reviewing to safeguard the medical profession

Networking platform: Tea break sessions surely offered a space for lawyers and medical doctors to discuss current legal frameworks and the issues that could be addressed.

Tan Sri Dato’ Seri Dr Hj Ismail Merican, the former Director-General of MOH then provided an overview of the significant changes to the Medical Act 1971 that took effect 1 July.

Amendments included the expanded powers of the MMC which allows the regulation of standards of practice of registered medical practitioners (RMPs). This includes the professional conduct and ethics of RMPs, and the approval of registrations or certifications.

He detailed the three parts in the medical register: provisional, full and specialist registrations. Temporary practicing certificates are also available for doctors registered overseas.

Dr Ismail further commented that all changes have been applied since July, except two – professional indemnity cover as a condition for the application and renewal of the annual practicing certificate; and the collection of minimum CPD credit points – which will take effect 1 January 2019.

Dr Ismail provided the audience with some issues to ponder, including composition of the MMC and suggested a limit to the participation of many of the current doctors. He urged for new members to be selected regularly, to allow innovative ideas to be brought in.

Concluding his speech, Dr Ismail provided the audience with some issues to ponder. He questioned the coverage of the Public Authorities Protection Act 1947 – meant to protect public servants who are discharging their official duties.

“This encompasses MMC members. But, are the RMPs entitled to any legal protection? In reality – not necessary,” he sighed.

Referring to the compulsory condition of professional indemnity cover for the issuance of an APC, he questioned who would fork out the fee for it – the government or the employees. Dr Ismail then continued to question the interim order and the strict adherence to general justice.

Finally, he asked his fellow doctors to ponder: “Would the amended act be able to address the current challenges and safeguard the future of our beloved profession? Where will we go from here?”

Back to the future: Milestones of Malaysia’s courts

Presenting the Malaysian edition of Mr Tong’s session, Mr Darryl Goon, Partner at Raja, Darryl & Loh, Malaysia, eloquently spoke of the recent significant decisions of the Malaysian courts and how these decisions altered the medico-landscape of Malaysia.

Mr Goon spoke of three areas of controversy – which were solved recently. Similar to Singapore, the recurring problem is the expected standard of care from a doctor, i.e. when is a medical doctor negligent. The second, is the new concept of non-delegable duty of care; and the last, is vicarious liability.

The Bolam test states that the law imposes a duty of care between a doctor and his patient; but, the standard of that care is a matter of medical judgement.

Rogers & Whittaker on the other hand, states that the law should recognise that a doctor has a duty to warn a patient of material risks – especially when the doctor is aware that the patient would attach significance to such a risk.

“One line of authority says Bolam applies, the other says Rogers applies, it goes on and on. And we have about 25 v. 24 cases. While 25 says Rogers applies, 24 says Bolam applies. So, there was much confusion in the law,” Mr Goon said exasperatedly.

Mr Goon explained that the Federal Court of Malaysia finally decided in the case ofFoo Fio Na v Dr Soo Fook Mun & Anorin 2007, that when it came to diagnosis and treatment, Bolam applies – whereas for advice, it would be Rogers & Whitaker.

He urged doctors to take the time to advise patients of “all sorts of risks” – and record them – as almost all cases in court have “the element of failure to advise.”

On the issue of private hospitals’ liability, Mr Goon drew example on the case ofSoo Cheng Lin v Dr Kok Choong Seng and Sunway Medical Centre Berhad. He explained the decision of the Federal Court, that when it came to the issue of non-delegable duty of care, it was not automatic, as it depended on the features of the case – similarly with vicarious liability.

This was also highlighted in a session after lunch, which featured an interview of a retired judge, Dato’ Mah Weng Kwai – on how the Courts approach expert medical evidence.

Justice Mah Weng Kwai was interviewed by Datin Anit K. Randhawa, EXCO member of MLSM on how judges decide on medical evidence. He reminded that judges are human beings as well, therefore, taking into account the pressures of work and the time that judges have, it would be useful to present medical evidence concisely.

“Manage-n-Engage” with social media

Later in the afternoon, the audience welcomed Mr Tim Fernandez, Managing Director of Live & Inspire Group of Companies, to the stage as he provided a break from medicine and law. He examined how social media is affecting medical practice and how to manage the change.

“The way we have interacted has changed tremendously,” he said, “Social media is not only affecting the medical practices, it’s affecting industries.”

On managing social media use in workplaces, Mr Fernandez shared that it is important to understand the demographic of the team. “If the demographic of your team or the organisation is made up of millennials, the younger generation, then you have to put in place, social media policies.”

He clarified that the social media does not directly affect the industry; but rather, it affects the psychology of everyone, and in turn affects industries.

Straightforwardly, Mr Fernandez pointed out that “It is literally in our lives. It is our lives.” We fail to realise that everything has become social. The way we work, the things we do.”

He added that social media is a tool that helps individuals express, expand and connect. He urged medical professionals to lead social media to actual human engagement.

As an example, he mentioned patients’ complaints, which can be made in the form of emails or a rant on social media. In coping with that, he advised doctors to “get human about it,” by turning it into social human engagement. Instead of being ‘keyboard warriors’, “take it off social media and try and resolve it that way.”

Document, document, document – evidence is key

Professor Lokman highlighted that despite what doctors think is a ‘good professional doctor-patient relationship’, it is important to manage patients’ expectations accordingly.

Professor Dato’ Dr Lokman Saim, a consultant ENT surgeon at KPJ Healthcare Berhad, also took on the stage to provide doctors with a personal account of the trials and tribulations of defending a medico-legal complaint.

He re-emphasised over and over again, that recording each move as a doctor was paramount. He attributed the evidence for his defence to his staff nurse and her notes.

After a comprehensive talk on his case, Dr Lokman concluded, “I think I have stressed enough about the importance of documentation. The litigation against me would be detrimental if I did not have any records to prove otherwise.”

“The lesson here for doctors is, that every patient has the potential to be a complainant,” he suggested, adding that patients’ expectations should always be managed carefully.

As an effort to enlighten the audience (after a long day), a mock trial featuring the cross examination of a doctor was carried out.

Mock trial: Playing the part of the counsel was Mr Sreekant Pillai, Advocate & Solicitor at Sreekant Pillai, while Professor Balwant took on the defendant role. The moderator was Ms Sharon Palani, Honorary Secretary of MLSM.

Be sympathetic: Refocusing visions to achieve justice

The event ended on a nostalgic note with Dr Shankar delivering the closing address. He told the story of the founding of MLSM and the initial concerns of such a society.

“When we started the medico-legal society, my great concern at that time, was that lawyers and doctors seem to hate each other,” he laughed.

“Doctors always all the time, being pilloried by lawyers and doctors; they feared going to court, because they were cross-examined by somebody totally unsympathetic to their job, their responsibilities and the Hippocratic oath that they had taken,” Dr Shankar elaborated, “Lawyers did not understand the hazards that the medical profession involved.”

In his closing address, Dr Shankar said that doctors in fact are the slaves of the community as they take seven years to practise medicine; but, a mistake lands them in court and “when you come out of that place, your career is ruined. Is that not too high a price to pay for this kind of approach to medical litigation?”

A sweet finalé: The honour of cutting the cake to mark the 30th year of MLSM was given to Dato’ Mahadev Shankar, retired Judge of the Court of Appeal, Malaysia and the 1st President of MLSM. With him is current president of MLSM, Professor Dato’ Dr Balwant Singh Gendeh.

He hoped that MLSM has achieved its vision by helping in educating both lawyers and doctors of the respective perils they had to face.

“By the process of cross-ventilation or cross-fertilisation, I would say, we would get a better understanding of our responsibilities to the community,” he said.

He urged lawyers to refocus their visions, to see that justice is done and doctors on the stand are treated fairly. – instead of just winning cases, persuading the judge to provide enormous sums in compensation and labelling doctors as criminals.

At the end of the event, it can be concluded that the medico-legal landscape of Malaysia has come a long way – however, there’s still much room for improvement. Echoing Dr Shankar’s message, “It is a matter of great pride to me, that a society, which we started in 1987, has contributed to a better understanding of each other.” The audience left with several take home messages – evidence is vital and decisions should be made in the best interest of the patient, with a patient-centric approach. MIMS

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